Is there a moral difference between an NDA and blackmail?

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Reader, may I call you John? Now imagine, John, that you are my employer and I know (or claim) that you made an inappropriate sexual advance towards me in the workplace. So I approach you. ‘John,’ I say, ‘you groped me in the lift. Give me £5,000 or I’ll make this public.’

That is blackmail. It’s blackmail whether or not the allegation is true. You can go straight to the police and I will very likely be charged with a serious criminal offence.

Now imagine a different scene. You, John, aware that I have been saying this about you, approach me first. ‘Matthew,’ you say, ‘I know what you’re saying about me. I deny the allegation of course, but I undertake to give you £5,000 if you do not proceed against me, and undertake never to disclose your allegation. Just sign here.’

You have offered me a non-disclosure agreement (NDA). There is no blackmail here — or not, at least, of the criminal kind. Indeed the courts may come to the rescue of either of us if either fails to uphold the agreement (or both of us if a newspaper threatens to break our mutually agreed silence).

What then is the critical distinction between these two scenarios? It can only be that in the first case the potential accuser explicitly made the threat and asked for a deal. In the second the potential accuser (whose threat was implicit) waited for the accused to propose a deal. One is criminal blackmail; the other is a legally enforceable contract.

I fail to see the moral difference between these two cases.

For this reason I’ve found media coverage and comment on the recent controversy over whether the Daily Telegraph could effectively violate NDAs between Sir Philip Green and a handful of aggrieved former employees somewhat skewed. I realise that Sir Philip is widely and deeply disliked, and am not advocating public sympathy for him; but if it is in the public interest (as Lord Hain, who defied the courts by naming Sir Philip, maintains) that his name and the allegations be made known, then these former employees have themselves acted against the public interest by taking money in return for conspiring with him to hush the allegations up.

NDAs are — or may be — a sort of inverted blackmail. Taking or threatening to take an allegation against an employer to the courts or an employment tribunal is a threat to expose somebody. It may be more than this, of course; and it may be thoroughly justifiable, even a moral duty; but the implied threat is there. Subsequently to agree, in exchange for money, to drop the matter and say nothing about it to others, may be tantamount to a blackmail threat that the blackmailer was shrewd enough not to voice, waiting instead for their prey (or his lawyers) to make the offer.

Before you mutter that this is all rather Jesuitical, let me remind you that every week scores of employment tribunal cases are ‘settled’ before the case comes to be adjudicated, on terms which involve the person or company complained against giving the complainant what are often very substantial sums of money in return not only for their dropping the complaint, but also signing an agreement not to talk about it.

Talk to employers, from small businesses to very large. You will not find many who cannot recount their own experience of settling a claim by an aggrieved employee before the dispute comes to tribunal, even though they had total moral confidence that the complaint was specious and had been advised by their lawyers that it would probably be thrown out. For many realistic employers, ‘probably’ is not enough. The publicity surrounding such a case threatens the employer with reputational damage even if (often enough) the employer finally ‘wins’. The employer, meanwhile, will be spending a great deal pursuing the case; the aggrieved party will be risking little, or nothing.

I was discussing recently with a friend who runs a greengrocer’s shop the case being brought against her by an employee whom she had dismissed for simple incompetence. As it happens, the employee had a speech defect; the employer had always known that but knew it could be worked around, and had organised the employee’s work so that speech-critical encounters would be minimised. But he was now alleging discrimination due to his disability.

‘But he’s making it up,’ I said to my friend, ‘and he’s impugning your own character too. You must fight it to the finish!’

‘I’ll settle,’ she said, bitterly. ‘Who knows how the tribunal panel will be composed? My lawyer says there’s a small but not negligible chance we’ll lose. It’s so much cheaper to settle, and avoid all the bad publicity.’ I contend that my friend has been blackmailed.

The existence and availability of non–disclosure agreements places in the hands of an aggrieved party a pearl of very great price. To those they are complaining about, silence on the matter may be precious, and the possibility of achieving this through an NDA can be held out — effectively sold — for a high price. Is it in the public interest that this should continue?

I’m not questioning the basis of all NDAs. In the course of an employee’s job, for example, she or he may gain information whose disclosure would be commercially damaging. We could draw up a list of the types of silence it might be quite legitimate to buy, or to incorporate into a contract of employment that the law would be right to uphold. But matters where what might be revealed (or claimed) should rightfully be in the public domain would not be on that list. This would include bullying, harassment, discrimination, corporate malfeasance and the whole range of disclosure that we include in the general term ‘whistleblowing’.

Silence on these things should not be for sale. Any such attempted contract of sale should not be enforceable in the courts.